Sutarties dėl Europos Sąjungos veikimo 102 straipsnio reformos įtaka objektyvaus pateisinimo sampratos raidai

Abstract

The author of this article deals with the concept of objective justification—an argument for justifying the possible abuse of a dominant position which formed in the practice of EU Commission and the case-law. The evolution of the concept of objective justification after the reform of Article 102 of the Treaty on European Union Functioning (TFEU, former Article 82 of the EC Treaty) is also scrutinised. The object of analysis in the paper is the concept of objective justification itself, its types (categories), application criteria (conditions) and principles, inter alia, the issues on the share of burden of proof between the suspected undertaking and the subject alleging the abuse of dominant position, their regulation before the reform and in the main reform documents of the Commission—the 2005 Discussion Paper and the 2008 Communication (the Guidelines). The aim of the paper is to identify what impact the implemented reform has had on the concept of objective justification. The author of the paper notices that the main types (categories) of objective justification were identified in the case-law, however, only after the Commission’s reform were these types clearly separated and the conditions of their application specified. Nonetheless, the Commission’s reform documents do not provide sufficient legal clarity and certainty, since, first of all, they only specify a negative, not positive concept of objective necessity, i.e. the documents provide what is not objectively necessary, but do not explain what may be objectively necessary. Thus the author recommends detailing the Guidelines in this aspect of objective justification.Meeting the competition’s argument, though not incorporated into the Guidelines, in the author’s opinion should be considered as one of the objective justification types, since, first, it was approved in the case-law, second, meeting competition may justify pricing and nonpricing abuses of dominant position if the undertaking is seeking to protect its own interests, and not to eliminate the competitors, doing so in proportion to the threat. The conditions for the use of meeting competition arguments are unreasonably narrowed in the Discussion paper and shift a difficult burden of proof on the undertaking concerned. The Commission’s reform extended the concept of objective justification by officially adding to it the concept of efficiencies, which, until the reform, had an unclear status amongst the other types of objective justification—the objective necessity and meeting competition. However, the conditions for proving efficiencies are very strict and almost impossible to prove—they shift to the undertaking not only the evidential burden of proof, but also a part of the legal burden of proof, which shall be an exclusive competence of the Commission or other subject alleging the infringement of Article 102. In regard to this point, the conditions for proving the efficiencies, as specified in the Guidelines, shall be revised by the Commission.